Ley 171 del 2001

(No. 171)

(Approved December 4, 2001)

AN ACT

To establish the directives that shall govern the Public Housing Administration and the Administrators of the Public Housing Units when canceling a lease in cases of non-compliance of contract due to criminal activity; to direct the creation of a regulation by the Public Housing Administration, and to provide on procedural aspects.

STATEMENT OF MOTIVES

In 1996, a directive commonly known in Puerto Rico as "One strike and You're Out" was issued by the Administration of President William J. Clinton. This directive challenged the Housing and Urban Development Administration by requiring it to put several regulations in effect that required public housing administrators to deny occupancy to applicants based on their criminal record, in an attempt to keep public housing projects free from drugs and criminal activity. Likewise, the strongest admission and eviction policies ever implemented by the United States Department of Housing and Urban Development, were established through this initiative.

This directive, in which former President Clinton stated his intention of maintaining public housing free from behavior that could affect the health, safety or the peaceful enjoyment of the other residents, was interpreted in

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many ways in different jurisdictions, and even unequally by the various administrators of public housing projects in Puerto Rico.

The federal directive has been applied without uniformity and often, arbitrarily in many states, affecting innocent third parties who have had their lease contracts cancelled and their family and children evicted, without the possibility of defending themselves from accusations, who are often made against third parties beyond their control.

Regardless of the need to protect the residents of public housing communities from outbursts of criminality, it must be acknowledged that, in its application, the "One Strike and You're Out" initiative allows injustices to be committed against innocent and low income persons by authorizing the eviction of an entire family that resides in a public housing unit, merely because some of its members or guests abuse alcohol, use controlled substances, or are involved in criminal activities related to drug trafficking. At the same time, it was provided that no person having a criminal conviction in their criminal record shall be admitted to the public housing system.

Pursuant to Federal legislation, the Puerto Rico Public Housing Administration should amend the existing public housing leasing agreements and include provisions in the new agreements and establish as grounds for the rescission of an agreement and/or the eviction of the lessees of a public housing unit for the reasons mentioned in the preceding paragraph. In other words, absolute responsibility is imposed on the lessee for the acts committed by another person. This is clearly in conflict with our legal system besides being in contravention with the parameters established by

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means of Federal legislation, especially in the case of a standard form contract. This is a contract that leaves the lessee at the mercy of the Administrator of the Public Housing Administration, which, in turn, contravenes to the spirit of economic protection and social restoration that motivates the legislation and is in contravention to the law. "[A]ny contract that is in contravention to the public purpose for which it was made and leaves at the mercy of a single will the termination of same, regardless of the juridical conduct observed by the obligor, is contrary to Law, morals and the public order." CRUV vs. Peña Ubiles, 95 D.P.R. 311, 315 (1967). "It would be abusive, unjust, unreasonable and oppressive that a citizen could be evicted in Puerto Rico for no other reason than the will of the lessor." Id., p. 314 .

This administration has a prior commitment to addressing the problems that affect residents of public housing and special communities. It is a commitment based on respect of human and constitutional rights, on the solidarity that unites us as members of the same population, and the desire to develop a better quality of life for those who have gone by the wayside and have been excluded from social and economic welfare.

Housing is a basic need for all citizens. In Puerto Rico, more than 250,000 people depend upon public housing to be guaranteed a safe dwelling. In most cases, it is the only refuge for many families, children and elderly persons. In our zeal to fight crime, we should not stray from the sensibility that should guide all public initiatives. History has taught us that the price to be paid may be too high.

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The indigent population in Puerto Rico, that is forced into public housing lease agreements, is defenseless. They are forced to accept the terms of the contract imposed by the lessors to obtain a dwelling in spite of the fact that they include provisions that defeat the public policy and purpose of Federal local and public housing legislation by providing to leave innocent low-income families without adequate public housing through an arbitrary eviction action. Likewise, for the same reasons, access to the public housing program is denied to entire families in which one of the members has been involved in any of the prohibited activities mentioned in the Federal legislation.

The strict of construction of responsibility defeats the public policy and purpose of the Federal and Puerto Rican housing laws, by leaving innocent, low-income families without adequate and decent housing, through an arbitrary eviction action. There are public order considerations to reject the imposition of strict or vicarious liability in the absence of evidence of personal liability. The consequence of one's own acts or omissions and not merely by association with any group or person, is implicit in due process of law. Under our legal system, guilt is personal, not by association.

A construction of absolute or vicarious liability violates fundamental rights such as privacy, freedom of association and due process of law, which are guaranteed by our own Constitution and by that of the United States of America. See "Human and Constitutional Rights Report of the Puerto Rico Bar Association Regarding the Public Policy of the Housing Administration known as "One Strike and You're Out" [Informe de la Comisión de Derechos Humanos y Constitucionales del Colegio de Abogados de Puerto

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Rico en Torno a la Public policy de the Administration de Vivienda Conocida como "One Strike and You're Out"], 61 Rev. Col. Abog. No. 1, p. 97-107, January-March, 2000.

Therefore, it is necessary to humanize the application of the "One Strike and You're Out" government policy to achieve the desirable goal of protecting families residing in public housing project communities from the effects of criminality, and at the same time, to avoid the eviction of entire families for committed by any of its members or by third parties.

The bill should not be construed or applied in such a manner that innocent persons are affected by it, since that was not the intention of the federal regulations. It is the obligation of the Government of the Commonwealth of Puerto Rico to guarantee that the "One Strike and You're Out" policy will serve its true intention, to promote peace and tranquility to those who most need it. The public policy of the Government should also guarantee that the Constitutional rights of the persons this measure concerns are protected and respected.

This legislation attempts to establish certain clear parameters in order to comply with the proposed true objectives. In consideration of the evident injustice that have taken place due to the arbitrary construction of this directive in Puerto Rico, this administration deems it is necessary to issue local legislation through which these regulations may be implemented more sensitively.

Just as unscrupulous persons should not benefit from government housing to use it as a hideaway or a center of operations for their illegal activities, neither can we allow the eviction of minors and the elderly, to

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walk the streets or to live among other low income families, due to the behavior of a third party who was not under their control.

This Legislature is committed to social justice, children, the elderly and persons with disabilities. Likewise, we are aware that housing is closely linked to social justice in Puerto Rico. For these reasons, the Government of the Commonwealth of Puerto Rico shall not rest while social conditions persist that serve as fertile soil for addiction, abuse and criminality. It is necessary to guarantee the life, peace and safety of the inhabitants of public housing, but this need must be tempered to avoid abuse and injustice against innocent persons that may find themselves homeless due to acts committed by third parties beyond their control. Consequently, the approval of this Act is urgent, to avoid acts injustice against innocent low income families without adequate and decent housing due to an arbitrary eviction.

BE IT ENACTED BY THE LEGISLATURE OF PUERTO RICO:

Section 1.-Definitions a. "Administration" - The Public Housing Administration created by Act No. 66 of August 17, 1989, as amended. b. "Administrator" - The executive official responsible for directing and managing a Public Housing Unit, as defined in this Act. c. "Managing Agent" - The natural or juridical person with whom the Puerto Rico Department of Housing and/or the Public Housing Administration have an administration and maintenance contract of the Public Housing Projects of Puerto Rico and who shall be governed by the terms and conditions of the contract signed among them, and the regulations

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of the Puerto Rico Department of Housing and the U.S. Department of Housing and Urban Development (HUD). d. "Self-Administrator" - Public Housing Project administered by its own residents through a Board of Directors elected by the residents themselves. The Board shall be governed by the terms and conditions of a management contract and the regulations of the Department of Housing and HUD. Any change of a purpose agreed upon between the Department and the Residents.(sic) e. "Affirmative Measures" - One or more acts performed by the tenant of a public housing unit that may be reasonably interpreted as performed in order to avoid or dissuade the alleged criminal behavior of a member of the family unit or a visiting third party. f. "Innocent Third Party" - Means any public housing unit resident being investigated for alleged criminal activity who has not participated, directly or indirectly, in the activity under investigation. g. "Visiting Third Party" - Means any person who is investigated, accused, suspected, or convicted for criminal activity, who does not reside in the public housing unit under investigation for an alleged criminal activity, but has made one or more visits to said unit with the consent of any of the members of the family unit. h. "Public Housing Unit" - Any housing developed with United Stated Government funds or Commonwealth funds, that is safe, hygienic and adequate for leasing to low income families. Words in singular shall include the plural and vice-versa.

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Section 2.- In all cases in which the Administration, of itself, or under the authority conferred to an Administrator, Administrating Agent, SelfAdministrator, or any other instrumentality on behalf of the Administration, promotes or initiates an eviction against any lessee for non-compliance of a lease agreement granted pursuant to Section 9 of the Housing Opportunity Program Extension Act of 1996, P.L. 104-120, 42 U.S.C. § 1437d, said administration shall be governed by the following parameters:

Prior to initiating any procedure of cancellation of contract and eviction, a report shall be prepared containing the following: a. The gravity of the offense or crime committed which is cause for the cancellation of the agreement versus the damage that the cancellation of the agreement and their eviction would cause to the family nucleus that resides in the unit. b. The availability of the resources of the family nucleus to obtain housing. c. The presence of minors, the elderly or disabled persons in the family nucleus. d. The degree of control exerted or that may be exerted by the lessee over the person that commits the offense or crime that causes the cancellation of the contract and the eviction. e. The existence of a victim of domestic violence in the family nucleus and the consequences of the cancellation of the housing contract on the family nucleus. f. The efforts by the lessee to prevent the behavior or actions of the person that causes the cancellation of the agreement and the eviction.

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g. The ignorance of the lessee regarding the behavior, actions or conduct of the person that provokes the canceling of the agreement and the eviction. h. Any other consideration to be pondered in order to avoid the cancellation of the public housing contract of innocent third parties. i. Consider all the circumstances of each case, including the gravity of the offense or non-compliance of the public housing lease contract committed by the resident or tenant of said housing unit. j. Prove beyond all reasonable doubt the participation and scope of such participation by the resident or tenant and/or some member of the family nucleus in activity expressly prohibited in the public housing leasing contract. k. Establish a causal connection between the imposition of the eviction sanction and the behavior of the lessees.

1. Existence of written notice of the intention to terminate the agreement at least thirty (30) days prior to the administrative evidence hearing. Said notice shall be delivered in person to an adult member of the family unit. The notice shall contain a reasonable description of the alleged facts on which the initiation of the process is based; it shall also advise the lessee of his right to be assisted by counsel, to present evidence in his own behalf and to examine the evidence against him/her; shall also advise him/her of the right to obtain a copy of the analysis prepared by the privatizing agent at least seven (7) days in advance of the hearing.

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The evaluation of all of these factors through the use of the adequate personnel and mechanisms shall be stated in writing and shall become a part of the tenant's record at the time of pursuing the corresponding action.

Section 3.- The Public Housing Administration, of itself, or through the Managing Agent or Self-Administrators, shall not promote an eviction order under the "One Strike and You're Out" initiative if any of the following conditions exist: a. Non-compliance with one of the following procedures:

1. The Administrator, Administrating Agent, AutoAdministrator or the Administration failed to notify the resident lessee in writing, in person or by certified mail, of the following: i. the specific facts on which the Administration based the application of the "One Strike and You're Out" regulations; ii. the intent of the Administrator or the Administration to cancel the contract; iii. the right to be represented by an attorney in the evidentiary hearing and the desirability of making the effort to obtain the representation.
2. Once the hearing is requested, the Administrating Agent, Self-Administrator or the Administration shall advise the lessee of the following: i. the date, hour and place of the evidentiary hearing, ii. the right to appear accompanied by an attorney, iii. the right to introduce defenses and exculpatory evidence,

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iv. the right to examine the evidence against him/her prior to the hearing. 3. The Administrator or Administration, Administrating Agent, or the Self-Administrator granted less than thirty (30) calendar days from the delivery or mailing of the last notification in writing to the date of the hearing.

The Administrator, Administrating Agent, SelfAdministrator or the Administration, after having exhausted every means to notify the lessee in person or by certified mail because he/she avoids being notified, it shall be sufficient to remit both or one of the notifications, as the case may be, by traditional mail. If so, an additional fifteen (15) days shall be granted, only for the hearing to be held. b. The lessee may present any of the following defenses without the list being understood as a limitation:

1. There is no existing decision of a court with jurisdiction decreeing a conviction or ruling that the lessee, a member of the family nucleus, or a third party, who at the time of the commission of the prohibited behavior was visiting or was under the control of the lessee of the public housing unit, incurred any prohibited behavior or activity; or
2. That he/she had no prior knowledge or could not foresee the criminal activity or action committed by a third party visiting his/her residence; or
3. Affirmative measures were taken to prevent the behavior or criminal activity of the third party or member of the family nucleus that provoked the cancellation of the contract and the eviction; or

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4. There is no causal connection between the eviction and the criminal activity, prohibited by law; or
5. The criminal behavior was committed by a minor who is currently under the jurisdiction of the Juvenile Court; or
6. The lessee can prove that he/she or the person convicted of an offense solely related to the use of controlled substances for which the contract would be cancelled, is currently enrolled in and regularly attending a duly-accredited Federal or state controlled substance rehabilitation program to prevent the use of controlled substances.

The lessee may establish other circumstances based on facts, to avoid the cancellation of the contract. c. During the evidentiary hearing, the lessee and/or the members of his/her family nucleus shall be guaranteed the following rights:

1. that the decision is based on the evidence introduced during the hearing;
2. that the decision is issued by an impartial judge or other authorized person;
3. that there shall be adequate notice about the termination of the public housing lease contract;
4. the opportunity to challenge and cross examine adverse evidence;
5. the opportunity be assisted by legal counsel.

Section 4.- The Administration, Administrating Agent, or SelfAdministrator shall allow that those members of the family nucleus that were not involved or did not participate in the activity prohibited in the public

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housing lease contract, to continue to live in the public housing unit object of such an agreement in all cases of eviction for violating a public housing lease contract by incurring any of the activities prohibited in said agreement. As a condition to allow the continued use and enjoyment of the public housing unit in question, it can be required that the members of the family nucleus or third parties who participated in or were involved in the prohibited activity, shall not be able to live in or occupy the public housing unit until attesting evidence is presented that the person who incurred the prohibited behavior or activity has completed a duly accredited treatment or rehabilitation program satisfactorily.

Section 5.- La Administration, Administrating Agent or the SelfAdministrator may condition the cancellation of the lease agreement to the tenant by having said tenant guarantee that the person whose action provokes the cancellation has vacated the housing unit and has been excluded from the lease contract.

Section 6.- The Public Housing Administrator is hereby directed to approve regulations to govern the procedures under "One Strike and You're Out" and this legislation uniformly, within ninety (90) days following the approval of this Act. Said regulations shall, at least, contain the following:

(a) A list of such delinquent conduct that, due to their social and collective impact, could give merit to the termination of the lease contract.

(b) The procedure to be followed by the privatizing agents when they deem that any of the offenses incurred could warrant the termination of the contract, including what is provided in this Act.

(c) The procedure to be followed during the evidentiary hearing.

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(d) The administrative review procedure of the evidentiary hearing's determination to terminate the lease agreement.

Section 7.- The Administration shall coordinate the appropriate implementation of this Act, along with other government agencies and other branches of government.

Section 8.- The procedures of this Act shall be governed pursuant to what is established in Act No. 170 of August 8, 1988, as amended, known as the "Uniform Administrative Procedures Act." Likewise, the right to present recourses of administrative review pursuant to the Puerto Rico Judiciary Act of 1984, Act No. 1 of July 28, 1984, as amended, and the Regulations of the Supreme Court of Puerto Rico and the Puerto Rico Circuit Court of Appeals, shall be guaranteed.

Section 9.- The Public Housing Administration, the Administrating Agent and the Self-Administrators, are hereby directed that after the approval of this Act, they shall program among their activities, training mechanisms to inform the members of the Boards of Directors of the residents of the Public Housing Units on the implications of the Federal regulation known as "One Strike and You're Out" and the rights, safeguards and obligations contained in this Act and in the regulations created by virtue thereof. Also discussed shall be topics such as: the content of the lease agreement, causes for the cancellation of the contracts, procedures established for the canceling of the contracts, defenses allowed, and the eviction procedure. It is imperative for the agency to develop mechanisms whereby the boards can be given informed on all the programs for the management controlled substances and the prevention of violence existing in

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their agencies or in other government agencies or instrumentalities. The Public Housing Administration, Administrating Agent and the SelfAdministrators shall coordinate for the orientation of the Boards on the existence of available training, reeducation, and health programs, as well as any other program that is directed to improve the quality of life of the residents of the public housing projects and motivate them toward selfmanagement.

Section 10.- This Act shall take effect ninety (90) days after its approval.

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CERTIFICATION

I hereby certify to the Secretary of State that the following Act No. 171 (H.B. 1661) of the $2^{ ext {nd }}$ Session of the $14^{ ext {th }}$ Legislature of Puerto Rico:

AN ACT to establish the directives that shall govern the Public Housing Administration and the Administrators of the Public Housing Units when canceling a lease in cases of non-compliance of contract due to criminal activity; to direct the creation of a regulation by the Public Housing Administration, and to provide on procedural aspects, has been translated from Spanish to English and that the English version is correct.

In San Juan, Puerto Rico, today $2^{ ext {nd }}$ of February of 2005.

Luis Fusté Lacourt Director